Kaine Agary

With the proliferation of online news portals and blogs, and recent matters that I have been privy to, it seems appropriate to revisit the issue of fair use or fair dealing where copyright protected material is concerned. I think that there are a lot of misconceptions about what is allowable practice under fair dealing. Apart from the letter of the law, the intuitive way to discern what is fair dealing is to follow the money. For instance, if website B copies content from website A, it makes little difference that website B attributes the content to website A if they have copied so much that it is unnecessary to visit website A for the complete story.

Website B has effectively deprived website A of any associated revenue from visitors who would have landed on their site had website B acted fairly. Another example would be the use of photographs in reporting news or events. Someone owns the right to every photograph that has been taken, whether it has been commissioned or the photographer has created the work on their own. Either way, someone has the right to the economic benefit from that photograph to the exclusion of others. Lifting that photograph from website A for use on website B without permission is taking money out of someone’s pocket (the commissioner or the photographer) and is unlikely to fall within the boundaries of fair dealing.

Schedule two of our Copyright Act deals with the exceptions from copyright control, ie., when a copyright protected work can be used without permission or clearance from the copyright owner. One of those exceptions is ‘fair dealing’ for purposes of “research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast.”

The stipulation that the title and author of the work be acknowledged when the use is public is an acknowledgement of the author’s paternity right (the right to be identified as the author of the work) which fall under those non-economic set of rights called moral rights.

According to John O. Asein (a leading authority on copyright law in Nigeria) in his new book, ‘Nigerian Copyright Law and Practice.’ Second Edition (Books and Gavel, Abuja, 2012), the defence of fair dealing has rarely been raised in Nigerian courts. Guidance from the courts is important because of the subjectivity involved in defining what exactly is ‘fair dealing’. Asein urges Nigerian courts to be guided by English cases rather than American cases as the concept of fair dealing is inherited from English law, and he shares two approaches from English law for defining the concept.

The first approach is from Lord Denning in the case of Hubbard v. Vosper (1972) for considering when criticism or review falls under ‘fair dealing’ – “You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comments, criticism or review, that may be fair dealing. If they are used to convey same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. TO make long extracts and attach short comments may be unfair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression.”

The second approach was laid out in the case of Ashdown v Telegraph Group Ltd (2002). Here, three factors were given for considering the defence: “(i) whether the alleged fair dealing is in commercial competition with the owner’s exploitation of the work; (ii) whether the work has already been published or otherwise exposed to the public; and (iii) the amount and importance of the work which has been taken.”

American copyright law provides for ‘fair use’, which allows for limited and transformative use of copyrighted material without acquiring permission from the rights holders. Just like ‘fair dealing’ it is a defence against a claim to copyright infringement.

Like ‘fair dealing’ in English cases, ‘fair use’ decisions are quite subjective and are decided on a case by case basis, taking certain things into consideration: the nature of the use, whether it is commercial or educational and whether it advances creative progress by adding something new to the work; the nature of the copyrighted work, whether it is a factual work (for which you get more leeway) or not, or whether it has been previously published (the scope of fair use on unpublished works is limited because copyright creators have the right to control the first public appearance of their work); the amount of the work used, that is, the substantiality of the portion used in relation to the copyrighted work as a whole (some people refer to the number seconds of music, or number of words from a book, etc., but none of that is really helpful because although the amount used may be minimal, it may be the ‘heart’ of the work and therefore not qualify as fair use); and the effect of the use upon the potential market for the copyrighted work – if the use disturbs the potential market for the work or takes advantage of a potential market opportunity for the work, it will not pass as fair use.

Both concepts are similar, but the American ‘fair use’ tends towards an even more subjective test than the English ‘fair dealing.’

Fair dealing can be a tricky area to navigate, which is why when you’re in doubt, it is advisable to seek permission before using another person’s work. Your lawyer may be able to advise you on usage and whether your use will pass as fair dealing based on case law from similar jurisdictions (what judges have decided in the past). However, as previously mentioned, this aspect of copyright law is still blossoming in Nigeria. In the case of Obe v. Grapevine Communication (2007) the defendants raised the defence of fair dealing in justification of their conduct. An assessment of the case by John O. Asein in his book ‘Nigerian Copyright Law and Practice.’ Second Edition (Books and Gavel, Abuja, 2012), suggests that the judges, in their ruling, missed an opportunity to develop the law in this first instance of the defence in our courts. The judges essentially ignored the issue of fair dealing and as such left no guidance for future cases.

Until these matters make it to court so that our judges interpret fair dealing and define its boundaries, we are essentially groping in the dark. However, there is sufficient guidance from similar jurisdictions and for the most part, it hinges on economics – have you dipped your paws into the pocket of the copyright owner?

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